Citation Nr: 0740516
Decision Date: 12/27/07 Archive Date: 01/02/08
DOCKET NO. 05-29 319 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Honolulu,
Hawaii
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for tinnitus.
3. Entitlement to service connection for post-traumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
Rebecca N. Poulson, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1968 to April
1988. He was stationed in Vietnam from March 1969 to
November 1970.
This matter is before the Board of Veterans' Appeals (Board)
from a July 2004 decision by the Department of Veterans
Affairs (VA) Regional Office (RO) in Honolulu, Hawaii, which
denied in pertinent part service connection for bilateral
hearing loss, tinnitus, and PTSD. The RO issued a notice of
the decision in July 2004, and the veteran timely filed a
Notice of Disagreement (NOD) in September 2004. The RO
provided a Statement of the Case (SOC) in August 2005 and
thereafter, in September 2005, the veteran timely filed a
substantive appeal. In July 2006, the RO provided a
Supplemental Statement of the Case (SSOC).
The veteran did not request a hearing on this matter.
The record raises an informal claim of entitlement to service
connection for major depressive disorder. This issue is not
developed for appellate consideration and is referred to the
RO for appropriate action.
FINDINGS OF FACT
1. VA has made all reasonable efforts to assist the veteran
in the development of his claim and has notified him of the
information and evidence necessary to substantiate the claim
addressed in this decision.
2. The service medical records (SMRs) do not reflect any
complaint or objective finding of hearing loss.
3. The veteran currently has a bilateral hearing loss
disability; however, his hearing loss is not apparent from
the medical record until many years after service and the
preponderance of the competent medical evidence of record is
against a causal link between his current hearing loss and
his active service or any incident thereof, to include
acoustic trauma.
4. The SMRs show no complaint or diagnosis of tinnitus;
there is a current diagnosis of tinnitus but it is not
apparent from the medical record until many years after
service and the preponderance of the competent evidence of
record is against a causal link between the veteran's current
tinnitus and his active service or any incident thereof, to
include acoustic trauma.
5. There is medical evidence of a current PTSD diagnosis, but
the veteran did not engage in combat with the enemy and his
claimed in-service stressors have not been corroborated by
service records or other credible supporting evidence.
CONCLUSIONS OF LAW
1. Bilateral hearing loss was not incurred in or aggravated
by active service, nor may sensorineural hearing loss be
presumed to have been incurred therein. 38 U.S.C.A. §§ 1101,
1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp.
2006); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309, 3.385
(2007).
2. Service connection for tinnitus is not warranted.
38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38
C.F.R. §§ 3.102, 3.159, 3.303 (2007).
3. Service connection for PTSD is not warranted. 38
U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§
3.303, 3.304, 4.125 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act of 2000 (VCAA)
The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002), significantly changed the law
prior to the pendency of this claim. VA has issued final
regulations to implement these statutory changes. See 38
C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA
provisions include an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits, and they redefine the obligations of
VA with respect to the duty to assist the veteran with the
claim.
a. Duty to Notify
VA has a duty to notify the veteran of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102, 5103. The Board concludes that the January
2004 and July 2005 letters sent to the veteran by the RO
adequately apprised him of most of the information and
evidence needed to substantiate the claims. The RO thus
complied with VCAA's notification requirements.
In order to meet the requirements of 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the
claimant about the information and evidence necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request that the
claimant provide any evidence in his possession that pertains
to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403
(2005) (outlining VCAA notice requirements).
Additionally, during the pendency of this appeal, on March 3,
2006, the Court of Appeals for Veterans' Claims (Court)
issued a decision in Dingess v. Nicholson, 19 Vet. App. 473,
484, 486 (2006), which held that the VCAA notice requirements
of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to
all five elements of a service connection claim. Those five
elements include: (1) veteran status; (2) existence of a
disability; (3) a connection between the veteran's service
and the disability; (4) degree of disability; and (5)
effective date of the disability. The Court held that upon
receipt of an application for a service connection claim, 38
U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to
review the information and the evidence presented with the
claim and to provide the claimant with notice of what
information and evidence not previously provided, if any,
will assist in substantiating or is necessary to substantiate
the elements of the claim as reasonably contemplated by the
application. Id. at 486. Additionally, this notice must
include notice that a disability rating and an effective date
for the award of benefits will be assigned if service
connection is awarded. Id.
The January 2004 and July 2005 letters from the RO clearly
disclosed VA's duty to obtain certain evidence for the
veteran, such as medical records and records held by any
Federal agency, provided the veteran gave consent and
supplied enough information to enable their attainment.
These letters made clear that although VA could assist the
veteran in obtaining these records, he carried the ultimate
burden of ensuring that VA received all such records. They
additionally apprised the veteran that VA would schedule a
medical examination or obtain a medical opinion for him if
the RO determined such to be necessary to make a decision on
the claims, and also asked the veteran to provide VA with any
medical reports in his possession.
The January 2004 and July 2005 RO letters also informed the
veteran about the type of evidence needed to support a
service connection claim, namely, proof of: (a) an injury in
military service or disease that began in or was made worse
during military service, or an event in service causing
injury or disease; (b) a current physical or mental
disability; and (c) a relationship between the current
disability and an injury, disease or event in service. The
Board thus finds that the veteran was effectively informed to
submit all relevant evidence in his possession, and that he
received notice of the evidence needed to substantiate his
claims, the avenues by which he might obtain such evidence,
and the allocation of responsibilities between himself and VA
in obtaining such evidence. See Beverly, 19 Vet. App. at
403; see also Mayfield, 19 Vet. App. at 109-12. Further, the
July 2005 letter provided the veteran with specific
information regarding service connection for PTSD, requested
that the veteran submit evidence regarding his alleged in-
service stressors, and provided him with a PTSD
questionnaire.
With respect to the Dingess requirements, the veteran was not
provided with notice of the type of evidence necessary to
establish a rating or effective date for the rating in either
the January 2004 or July 2005 letters. However, the RO did
supply notice of these elements in a March 2006 letter.
The Board also recognizes that, according to Pelegrini v.
Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice
must "precede an initial unfavorable [agency of original
jurisdiction (AOJ)] decision on a service-connection claim."
VA did provide most of such notice to the veteran prior to
the July 2004 RO decision that is the subject of this appeal
in its January 2004 letter. As noted above, however, the RO
did not supply notice of the two Dingess elements until March
2006, approximately two years after the RO decision.
However, timely rating notice would not have operated to
alter the outcome because evidence establishing service
connection for bilateral hearing loss, tinnitus, and PTSD is
lacking. See Sanders, 487 F.3d at 887 (recognizing that "a
demonstration that the outcome would not have been different
in the absence of the error would demonstrate that there was
no prejudice").
The July 2005 VCAA letter was issued subsequent to the RO
decision that is the subject of this appeal. The Board is
cognizant of recent Federal Circuit decisions pertaining to
prejudicial error. Specifically, in Sanders v. Nicholson,
487 F.3d 881 (2007), the Federal Circuit held that any error
by VA in providing the notice required by 38 U.S.C.A. §
5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial
and that once an error is identified by the Court, the burden
shifts to VA to demonstrate that the error was not
prejudicial. The Federal Circuit reversed the Court of
Appeals for Veterans Claims' holding that an appellant before
the Court has the initial burden of demonstrating prejudice
due to VA error involving: (1) providing notice of the
parties' respective obligations to obtain the information and
evidence necessary to substantiate the claim: (2) requesting
that the claimant provide any pertinent evidence in the
claimant's possession; and (3) failing to provide notice
before a decision on the claim by the agency of original
jurisdiction. (Emphasis added). See also Simmons v.
Nicholson, 487 F.3d 892 (2007).
In this case, the timing error with respect to the notice
requirements noted above raises a presumption of prejudicial
error but such error is rebutted by the record. The RO cured
the timing defect by providing complete VCAA notice together
with re-adjudication of the claims, as demonstrated by the
July 2006 supplemental statement of the case. Prickett v.
Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the
remedial measures of issuing fully compliant VCAA
notification and re-adjudicating the claim in the form of a
statement of the case to cure timing of notification defect).
The Court has held that a supplemental statement of the case
that complies with applicable due process and notification
requirements constitutes a readjudication decision. See
Mayfield v. Nicholson, 20 Vet. App. 537, 541-42 (2006)
(Mayfield III). See also Prickett, supra (holding that a
statement of the case that complies with all applicable due
process and notification requirements constitutes a
readjudication decision). As the supplemental statement of
the case complied with the applicable due process and
notification requirements for a decision, it constitutes a
readjudication decision. Accordingly, the provision of
adequate notice followed by a readjudication "cures" any
timing problem associated with inadequate notice or the lack
of notice prior to an initial adjudication. Mayfield III, 20
Vet. App. at 541-42, citing Mayfield v. Nicholson, 444 F.3d
1328, 1333-34 (Fed. Cir. 2006) (Mayfield II).
Thus, the presumption of prejudice against the veteran
because of the timing of the notice is rebutted. See
Sanders, supra. The veteran has been provided the
opportunity to respond to VA correspondence and over the
course of the appeal has had multiple opportunities to submit
and identify evidence. Furthermore, the veteran has been
provided a meaningful opportunity to participate effectively
in the processing of his claims by VA.
b. Duty to Assist
VA also has a duty to assist the veteran in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A(a) ("The Secretary shall make reasonable efforts to
assist a claimant in obtaining evidence necessary to
substantiate the . . . claim"). This duty includes assisting
the veteran in obtaining records and providing medical
examinations or obtaining medical opinions when such are
necessary to make a decision on the claim. 38 U.S.C.A. §
5103A(b), (c), (d) (setting forth Secretary's various duties
to claimant).
The Board finds that all necessary assistance has been
provided to the veteran. The evidence includes service
medical records, private medical records, and VA medical
records. The Board notes that the veteran has not been given
a VA examination in regard to his claims for service
connection for bilateral hearing loss, tinnitus, and PTSD.
In disability compensation claims, VA must provide a medical
examination when there is: (1) competent evidence of a
current disability or persistent or recurrent symptoms of a
disability; (2) evidence establishing that an event, injury,
or disease occurred in service or establishing certain
diseases manifesting during an applicable presumptive period
for which the claimant qualifies; and (3) an indication that
the disability or persistent or recurrent symptoms of a
disability may be associated with the veteran's service or
with another service-connected disability; but (4)
insufficient competent medical evidence on file for the
Secretary to make a decision on the claim. See 38 C.F.R. §
3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
In this case, there is no medical evidence of hearing loss or
tinnitus during service or for many years thereafter. The
veteran is competent to state that he has had noise in his
ears, such as ringing and has noticed some degree of hearing
loss (see, e.g., Washington v. Nicholson, 19 Vet. App. 362
(2005)), but he is not competent to give an opinion as to
whether he had a hearing loss disability at any point in
time, as defined by the applicable VA regulation (38 C.F.R.
§ 3.385), nor is he competent to provide an opinion as to the
etiology of his current hearing loss or tinnitus. There is
no competent evidence that suggests a causal link between a
current diagnosis of hearing loss or tinnitus and any
incident of active duty, to include claimed acoustic trauma.
As explained in more detail in the analysis below, the
service personnel records do not support the veteran's
allegation of a change in his military specialty, resulting
in acoustic trauma from weaponry fire. In view of the
foregoing and given the number of years that elapsed before
the hearing loss and tinnitus were apparent in the medical
record, along with his post-service work history and the
absence of a competent opinion suggesting either claimed
causal relationship, there is no duty to provide a medical
examination or a medical opinion. 38 U.S.C.A. § 5103A(d); 38
C.F.R. § 3.159(c)(4); McLendon, supra.
As to the veteran's claim for service connection for PTSD,
the record does contain such a diagnosis. However, the
veteran did not engage in combat with the enemy and he has
not provided sufficient information on which to attempt
verification of his alleged in-service stressor. As noted
above, the service personnel records do not support the
veteran's allegation of a change in his military specialty,
resulting in exposure to weaponry fire. As there is no
competent credible evidence of any claimed in-service
stressor upon which a diagnosis of PTSD was based, there is
no duty to provide another psychiatric examination or a
psychiatric opinion.
In view of the foregoing, the Board finds that VA has
fulfilled its duty to notify and assist the veteran in the
claims under consideration. Adjudication of the claims at
this juncture, without directing or accomplishing any
additional notification and/or development action, poses no
risk of prejudice to the veteran. Bernard v. Brown, 4 Vet.
App. 384, 394 (1993).
II. Laws and Regulations
a. Service Connection
The Court has held that "[f]or service connection to be
awarded, there must be (1) medical evidence of a current
disability; (2) medical evidence, or in certain
circumstances, lay evidence of an in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the present disease or injury." Coburn v. Nicholson, 19
Vet. App. 427, 431 (2006); accord Disabled Am. Veterans v.
Sec'y of Veterans Affairs, 419 F.3d 1317, 1318 (Fed. Cir.
2005); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir.
2004). If the veteran fails to demonstrate any one element,
denial of service connection will result. Disabled Am.
Veterans, supra; Coburn, supra.
With respect to the "current disability" prong, the Court has
recognized that, "[i]n the absence of proof of a present
disability there can be no valid claim" of service
connection. Brammer v. Derwinski, 3 Vet. App. 223, 225
(1992); Caluza v. Brown, 7 Vet. App. 498, 505 (1995)
(recognizing that "[a] service-connection claim must be
accompanied by evidence which establishes that the claimant
currently has the claimed disability"); see also Chelte v.
Brown, 10 Vet. App. 268, 271, 272 (1997) (holding that the
veteran's claim was not well grounded when the evidence
"establishe[d] only that the veteran had a [disability] in
the past, not that he has a current disability").
Turning to the second, "incurrence in or aggravation by
service" prong, the Court has expressed that "[s]ervice
connection for VA disability compensation . . . will be
awarded to a veteran who served on active duty during a
period of war . . . for any disease or injury that was
incurred in or aggravated by" such service. Caluza, 7 Vet.
App. at 505. VA may grant service connection, despite a
diagnosis after discharge, when all the evidence, including
that pertinent to service, establishes that the veteran
incurred the disease during service. See 38 C.F.R. §
3.303(d); accord Caluza, supra ("When a disease is first
diagnosed after service, service connection may nevertheless
be established by evidence demonstrating that the disease was
in fact 'incurred' during the veteran's service, or by
evidence that a presumption period applied").
With respect to the third, "nexus" prong, the veteran must
demonstrate through medical evidence that "a causal
relationship" exists between the present disability and an
in-service event. Shedden, 381 F.3d at 1167. Where the
determinative issue involves medical causation or a medical
diagnosis, competent medical evidence must demonstrate that
the claim is plausible. Espiritu v. Derwinski, 2 Vet. App.
492, 494 (1992). Mere lay assertions of medical status do
not constitute competent medical evidence. Moray v. Brown, 5
Vet. App. 211, 214 (1993) ("lay persons are not competent to
offer medical opinions"). Alternatively, a veteran can
establish a nexus between service and the current disability
by offering medical or lay evidence of continuity of
symptomatology and medical evidence of a nexus between the
present disability and the symptomatology. See Voerth v.
West, 13 Vet. App. 117, 120 (1999); Savage v. Gober, 10 Vet.
App. 488, 495 (1997).
b. Standard of Proof
38 U.S.C.A. § 5107 sets forth the standard of proof applied
in decisions on claims for veterans' benefits. A veteran
will receive the benefit of the doubt when an approximate
balance of positive and negative evidence exists. 38
U.S.C.A. § 5107; 38 C.F.R. § 3.102. Thus, when a veteran
seeks benefits and the evidence is in relative equipoise, the
veteran prevails. Wells v. Principi, 18 Vet. App. 33, 36
(2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). A
claim will be denied only if a preponderance of the evidence
is against the claim. See Alemany v. Brown, 9 Vet. App. 518,
519-20 (1996).
III. Analysis
Hearing Loss and Tinnitus
For purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies at 500,
1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater;
when the auditory thresholds for at least three of the
frequencies at 500, 1000, 2000, 3000, and 4000 Hertz are
26 decibels or greater; or when speech recognition scores
using the Maryland CNC Test are less than 94 percent.
38 C.F.R. § 3.385.
The requirements for service connection for hearing loss as
defined in 38 C.F.R. § 3.385 need not be shown by the results
of audiometric testing during a claimant's period of active
military service in order for service connection to be
granted. The United States Court of Appeals for Veterans
Claims (Court) has held that 38 C.F.R. § 3.385 does not
prevent a claimant from establishing service connection on
the basis of post-service evidence of hearing loss related to
service when there were no audiometric scores reported at
separation from service. Ledford v. Derwinski, 3 Vet. App.
87, 89 (1992). The Court has also held that the regulation
does not necessarily preclude service connection for hearing
loss that first met the regulation's requirements after
service. Hensley v. Brown, 5 Vet. App. 155, 159 (1993).
Thus, a claimant who seeks to establish service connection
for a current hearing disability must show, as is required in
a claim for service connection for any disability, that a
current hearing disability is the result of an injury or
disease incurred in service, the determination of which
depends on a review of all the evidence of record including
that pertinent to service. 38 U.S.C.A. §§ 1110 and 1131;
C.F.R. §§ 3.303 and 3.304; Hensley, 5 Vet. App. at 159-60.
The veteran has submitted statements in support of his claim
that he has hearing loss due to exposure to acoustic trauma
during basic training and Vietnam. His service personnel
records show that he was a medical supply specialist. His
decorations included the Vietnam Service Medal but there is
no indication that he was awarded any medals or decorations
evincing combat duty. Subsequent to service, the veteran
worked as a stevedore supervisor for the Port Authority of
Guam.
Service medical records reflect that the veteran received a
normal clinical evaluation of the ears in his December 1967
pre-induction examination. He also had normal hearing with a
score of 15/15 in both ears (whispered and spoken voice).
15/15 is normal. Smith v. Derwinski, 2 Vet. App. 137 (1992).
Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
-5
-10
-10
-10
-10
LEFT
-10
-10
-10
-10
-10
The veteran also received a normal clinical evaluation of the
ears in a February 1971 examination. Pure tone thresholds,
in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
5
10
--
10
LEFT
10
10
10
--
15
The veteran again received a normal clinical evaluation of
the ears in an April 1978 examination. Pure tone thresholds,
in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
10
10
--
5
LEFT
20
10
15
--
15
The veteran received another normal clinical evaluation of
the ears in a January 1981 examination. Pure tone
thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
10
10
10
10
LEFT
10
10
10
10
10
In 1982, the veteran received another normal clinical
evaluation. Pure tone thresholds, in decibels, were as
follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
0
10
LEFT
10
5
0
5
5
The veteran's February 1986 examination was normal as well.
Pure tone thresholds, in decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
0
5
5
10
LEFT
5
0
5
5
5
The SMRs indicate that the veteran was treated for ear
infections in November 1982 and April 1986.
Finally, SMRs reflect that the veteran received a normal
clinical evaluation of the ears in his January 1988
retirement examination. Pure tone thresholds, in decibels,
were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
0
0
0
15
LEFT
20
15
15
15
10
A December 2003 VA treatment note indicates that the veteran
complained of a mild hearing loss. The examiner noted that
"[t]his may also be related to noise during his military
service." No audiometric testing was performed at this
time. Upon physical examination, the veteran's hearing
appeared stable and the tympanic membranes were clear. The
veteran reported that he did not feel his hearing was
limiting him.
A September 2004 VA treatment note indicates that the veteran
had difficulty with tinnitus and hearing loss. He reported
that the right side was worse than the left. Upon
examination, both ears were clear.
In October 2004, the veteran was examined by a private
audiologist. The examiner diagnosed "mild hearing loss" in
the right ear and "moderate hearing loss" in the left ear.
Both tympanograms were normal. The report includes an
audiometric examination graph. However, the Board may not
use the results from that testing when evaluating the
veteran's current level on auditory impairment because the
graph was not accompanied by numerical results. See Colvin
v. Derwinski, 1 Vet. App. 171, 175 (1991); Kelly v. Brown, 7
Vet. App. 471 (1995). Speech audiometry revealed speech
recognition ability of 88% in the right ear and 84% in the
left ear. The audiologist determined that these results
"are consistent with a [bilateral] sensorineural hearing
loss" and that the loss warranted hearing aids.
A November 2004 treatment record from the Naval Hospital in
Guam indicates that the veteran reported that he had
experienced ringing and pain in both ears for the last month.
He described a "roaring" sound and stated that it was
increasing in frequency. The veteran reported that these
problems had started 45 years ago. Upon physical
examination, the clinician noted "Weber lateralizes to the
right otherwise normal exam including neuro." The
provisional diagnosis was episodic tinnitus and subjective
hearing loss.
A December 2004 treatment record from the Naval Hospital in
Guam indicates that the veteran was seen at the ENT clinic.
Upon physical examination, both ears were normal. No
audiometric testing was performed at this time, however. The
assessment was sensorineural hearing loss and tinnitus. The
Board acknowledges that the report references dictated notes;
however, upon examination of the file, no such notes could be
found.
A July 2005 VA progress note indicates that the veteran
complained of intermittent tinnitus. He reported no ear pain
or discharge.
Although the Board cannot rely on the October 2004 audiograph
to determine whether the evidence shows a bilateral hearing
loss disability as defined by 38 C.F.R. § 3.385, the October
2004 speech recognition scores were less than 94 percent in
both ears. This evidence suggests that the veteran has a
hearing impairment as defined by the applicable regulation.
However, the service medical records lack any finding,
treatment, or diagnosis of hearing loss or tinnitus. The
veteran's pre-induction and retirement examinations reflect a
normal clinical assessment of the ears and normal audiograms.
It is particularly pertinent to note that the veteran did not
complain of hearing loss or tinnitus upon his separation from
service examination. Although the medical evidence
establishes current diagnoses of bilateral hearing loss and
tinnitus, both disorders were first diagnosed more than 15
years post-service. The record does not contain medical
evidence or a competent opinion that links the veteran's
hearing loss or tinnitus to service, to include alleged
acoustic trauma.
The Board acknowledges the December 2003 VA examiner's
statement that the veteran's mild hearing loss "may also be
related to noise during his military service" but such an
opinion is too speculative in nature to constitute competent
evidence of the claimed causal relationship. 38 C.F.R. §
3.102 (2007) provides that service connection may not be
based on a resort to speculation or even remote possibility,
and a number of Court cases have provided additional guidance
as to this aspect of weighing medical opinion evidence. See,
e.g., Stegman v. Derwinski, 3 Vet. App. 228, 230 (1992)
(evidence favorable to the veteran's claim that does little
more than suggest a possibility that his illnesses might have
been caused by service radiation exposure is insufficient to
establish service connection); Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992) (medical evidence which merely indicates
that the alleged disorder "may or may not" exist or "may or
may not" be related, is too speculative to establish the
presence of the claimed disorder or any such relationship).
It is also pertinent to note that there is no indication that
the December 2003 examiner who provided the speculative
opinion reviewed the claims file. Also, the veteran reported
in November 2004 that his hearing loss and tinnitus began 45
years ago, which would pre-date his entry into service.
The veteran is certainly competent to state that he has had
noise such as ringing in his ears and has noticed some degree
of hearing loss over the years. See e.g., Barr v. Nicholson,
No. 04-0534 (U.S. Vet. App. June 15, 2007); Washington v.
Nicholson, 19 Vet. App. 362 (2005). However, he is not
competent to give an opinion as to whether he had a hearing
loss disability at any point in time, as defined by the
applicable VA regulation, 38 C.F.R. § 3.385. Such must be
demonstrated by certified audiological testing. Nor is he
competent to provide an opinion as to the etiology of his
current hearing loss or tinnitus. So, while the veteran is
competent to state that he had noticed some degree of hearing
loss and noise in his ears such as ringing, as a layman, he
is not competent to give an opinion that there is an
etiological relationship between a current diagnosis of
hearing loss or tinnitus and service. He has not been shown
to possess the requisite medical training or credentials
needed to render such an opinion. Accordingly, his lay
opinion as to the contended causal relationship does not
constitute competent medical evidence and lacks probative
value. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95
(1992).
The Board also finds that the veteran's allegation that his
military specialty was changed while in Vietnam from that of
a medical supply specialist in a hospital in Saigon to an
area where he was exposed to mortar and rocket attacks is not
credible. The service personnel records do not confirm this
and the veteran has not presented any corroborative evidence.
In view of the foregoing, the Board finds that the
preponderance of the competent and credible evidence weighs
against a conclusion that the veteran has hearing loss and
tinnitus that began during service or as the result of any
incident of active duty, to include alleged acoustic trauma.
As the preponderance of the evidence is against the claims,
the benefit of the doubt doctrine is not applicable and the
claims for service connection for bilateral hearing loss and
tinnitus must be denied. See 38 U.S.C.A. § 5107(b); Ortiz v.
Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding
that "the benefit of the doubt rule is inapplicable when the
preponderance of the evidence is found to be against the
claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).
PTSD
Establishing service connection for PTSD requires: (1)
Medical evidence diagnosing PTSD; (2) credible supporting
evidence that the claimed in-service stressor actually
occurred; and (3) medical evidence of a link between current
symptoms and the claimed in-service stressor. 38 C.F.R. §
3.304(f); see Cohen v. Brown, 10 Vet. App.128 (1997).
If the evidence establishes that the veteran engaged in
combat with the enemy and the claimed stressor is related to
that combat, in the absence of clear and convincing evidence
to the contrary, and provided that the claimed stressor is
consistent with the circumstances, conditions, or hardships
of the veteran's service, the veteran's lay testimony alone
may establish the occurrence of the claimed in-service
stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f).
Participation in combat, a determination that is to be made
on a case-by-case basis, requires that a veteran personally
participated in events constituting an actual fight or
encounter with a military foe or hostile unit or
instrumentality. See VAOPGCPREC 12-99 (October 18, 1999);
Moran v. Principi, 17 Vet. App. 149 (2003); see also Sizemore
v. Principi, 18 Vet. App. 264, 273-74 (2004).
If the claimant did not engage in combat with the enemy, or
the claimed stressors are not related to combat, then the
claimant's testimony alone is not sufficient to establish the
occurrence of the claimed stressors, and his testimony must
be corroborated by credible supporting evidence. Cohen v.
Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App.
389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996).
Furthermore, service department records must support, and not
contradict, the claimant's testimony regarding non-combat
stressors. Doran v. Brown, 6 Vet. App. 283 (1994).
The question of whether the veteran was exposed to a stressor
in service is a factual one, and VA adjudicators are not
bound to accept uncorroborated accounts of stressors or
medical opinions based upon such accounts. Wood v.
Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration,
1 Vet. App. 406 (1991). Hence, whether a stressor was of
sufficient gravity to cause or support a diagnosis of post-
traumatic stress disorder is a question of fact for medical
professionals and whether the evidence establishes the
occurrence of stressors is a question of fact for
adjudicators.
The veteran contends that he has PTSD due to service in
Vietnam. In a September 2005 statement, the veteran asserted
that he was initially assigned to the 362nd ENGR Company in
Tay Ninh from April 1969 to July 1969. He stated that there
were daily incoming mortar rounds and that he never knew
which direction they were coming from. He claimed that he
witnessed another solider "injured or killed" while on
guard duty. The veteran reported that his emotional problems
were so great that he extended his tour and changed his MOS
so that he could be assigned to the 3rd Field Hospital in
Saigon. In his September 2004 NOD, the veteran asserted that
his duties were not limited to his MOS while in Vietnam.
The veteran's personnel records establish that he was a
medical supply specialist throughout his tour in Vietnam, and
that he was stationed in Saigon. There is no record of the
veteran being assigned to the 362nd ENGR Company. Rather,
the personnel records indicate that he was assigned to the
3rd Field Hospital from April 1969 to November 1970. There
is no objective evidence that he "engaged in combat with the
enemy" such that his lay testimony, alone, can establish the
occurrence of his claimed in-service stressors. Accordingly,
in the absence of objective evidence of combat service, the
Board finds that 38 U.S.C.A. § 1154(b) does not apply in this
case.
The service medical records show no psychiatric disorder.
However, in the Report of Medical History section of the
January 1988 retirement examination, the veteran checked the
box marked yes for "nervous trouble of any sort." No other
explanation is provided.
A March 2004 VA treatment record indicates that the veteran
"endorses symptoms of clinical depression." The veteran
described his appetite as okay and noted that he had trouble
sleeping. He also reported "lost interest," feeling
guilty, and low energy level. He was irritable and had tense
relationships at home. The clinician prescribed prozac.
A March 2004 VA social work record indicates that the
veteran's depression "comes and goes." The veteran
wondered if his diabetic condition, which had recently been
diagnosed, was affecting his mood and overall temperament.
He continued to repot periods of irritability. He related
that he "cut his career short" due to his emotional
instability. The veteran reported that he did not seek help
sooner because he was worried about the impact it would have
on his career. The examiner noted that his speech was clear
and fluent and that his eye contact was good. He was fully
oriented. The veteran's mood was subdued and depressed. His
thought processes were logical and goal-directed. There was
no psychosis or suicidal or homicidal ideation. His
cognitive functions were grossly intact. The diagnosis was
major depressive disorder "rule out PTSD."
Another March 2004 VA social work record indicates that the
veteran's duties while in Vietnam essentially involved
receiving and issuing supplies. He stated that he "couldn't
take the pressure and stress" where he was stationed in
Vietnam and reenlisted in order to be relocated to another
area. He reported difficulty sleeping, losing interest, low
energy level, irritability, and difficulty concentrating. He
described his appetite as okay. The veteran related that
while he was "much better now than before," he continued to
experience episodes of impulsive and spontaneous anger. He
reported feeling depressed, which he described as a blackout.
He reported suicidal thoughts but had not acted on those
thoughts. The examiner noted that he was quiet and reserved
yet pleasant and cooperative. His speech was clear and
fluent and eye contact was good. He was fully oriented. The
veteran's mood was subdued and depressed with a full and
appropriate affect. His thought processes were logical and
goal-directed. His cognitive functions were grossly intact.
The diagnosis was major depressive disorder "rule out
PTSD."
An April 2004 VA social work record indicates that the
veteran reported he continued to feel irritated and was
easily angered. The examiner noted that he was casually
dressed, neat in appearance, and well groomed. His speech
was clear and fluent. He was fully oriented. The veteran's
mood was calm and stable. His thought processes were logical
and goal-directed. There was no psychosis or suicidal or
homicidal ideation. His cognitive functions were grossly
intact. The diagnosis was again major depressive disorder
"rule out PTSD."
A May 2004 VA mental health diagnostic interview indicates
that the veteran reported problems with his mood, temper, and
sleep. He stated that while in Vietnam he worked in supply
and was then detailed to the motor pool, guard duty, and
filling sand bags. He related that he had quit drinking in
February 2004. He indicated that he stopped taking prozac
because it made him feel nervous. The examiner observed that
the veteran was casually dressed and groomed. His speech was
fluent and his eye contact was fair. He was depressed and
irritable. There was no psychosis or suicidal or homicidal
ideation. His cognitive functions were grossly intact. The
diagnosis included, in pertinent part, depressive disorder
"rule out PTSD." The veteran's GAF score was 60.
A December 2004 VA treatment record from the mental health
clinic indicates that the veteran reported feeling depressed
at times, although the prozac was "calming."
A January 2005 VA treatment record from the mental health
clinic indicates that the veteran had better energy and that
his mood was improved. He discussed disturbing memories of
picking up dead bodies while in Vietnam. The examiner
observed that the veteran was casually dressed and groomed.
His speech was normal and he made good eye contact. There
was no psychosis or suicidal or homicidal ideation. His
cognitive functions were grossly intact. The diagnosis
included PTSD and alcohol abuse.
A January 2005 VA mental health consultation report indicates
that the veteran reported distressing memories and dreams,
nightmares, physiological reactivity, avoidance of stimuli,
disrupted sleep, excessive anger, hypervigilence, and an
exaggerated startle response. He gave a history of periodic
episodes of depressed mood, anhedonia, and social avoidance.
He also reported occasional thoughts of death but denied
suicidal ideation, intent, or plan. The veteran denied
symptoms of mania, psychosis, and dissociation. The examiner
observed that the veteran was casually dressed with
appropriate grooming and hygiene. He appeared alert with a
stable level of consciousness. The veteran was fully
oriented. He was polite and cooperative and his eye contact
was normal. His speech and motor behavior were normal. His
mood was neutral. There was no suicidal or homicidal
ideation. The veteran's thought processes were linear and
logical. The diagnosis included PTSD "rule out alcohol
abuse." His GAF score was 60. The examiner recommended a
course of cognitive/behavioral psychotherapy. The veteran's
GAF scores during the next few months fluctuated between 65
and 70.
A February 2006 VA progress note indicates that the veteran
reported that his depression and temper were worse. He had
started drinking again. The examiner observed that the
veteran was neatly dressed and groomed. His mood was
depressed and irritable. His speech was normal. There was
no psychosis or suicidal or homicidal ideation. The veteran
denied any suicidal or homicidal ideations. His memory,
judgment, and insight were good. The diagnosis included PTSD
and alcohol abuse.
The Board accepts the January 2005 and February 2006 PTSD
diagnoses. Despite a positive current PTSD diagnosis,
however, the Board finds that the evidence preponderates
against the veteran's claim, as the relevant evidence of
record does not demonstrate that the veteran participated in
combat with the enemy and further does not contain any
supportive evidence of any of the claimed in-service
stressors.
The Board comments that the service records do not reflect
any combat service by the veteran while he served on active
duty. None of the medals that the veteran received, to
include the Expert Rifle Badge, Good Conduct Medal, National
Defense Service Medal, Vietnam Service Medal, and Vietnam
Campaign Medal, denotes combat service. See 71 Fed. Reg.
17276-17334 (Apr. 6, 2006) (describing criteria for award of
decorations, medals, ribbons and similar devices). Moreover,
the veteran's MOS as a medical supply specialist is not
consistent with engagement in combat with the enemy and, as
noted above, his allegation of a change in MOS while in
Vietnam is not supported by the service personnel records.
Because the veteran has not demonstrated that he engaged in
combat with the enemy, his own attestations alone cannot
support a finding of an in-service stressor. Sizemore, 18
Vet. App. at 270. In order to succeed on this element of his
PTSD claim, therefore, the veteran must offer evidence that
verifies his declarations of an in-service stressor. The RO
explicitly informed the veteran in its July 2005 letter
about the necessity of providing a detailed description of
the stressor, including the exact, complete unit designation,
dates of the incident, the location of the incident, and full
names of other units or persons involved. The record,
however, contains no such supporting evidence and no
corroborating official records, buddy statements or other
proof of the alleged stressor. Moreover, the veteran's
account of the claimed stressors, as recorded in his
September 2005 correspondence, is too vague and unspecific to
verify. Because generally anecdotal incidents such as the
events alleged by the veteran cannot be researched
effectively, the Board has no method of confirming that they
in fact occurred. See 38 C.F.R. § 3.159 (c)(2)(i) (2007).
For this and the other aforementioned reasons, the
preponderance of the evidence is against the veteran's claim
for service-connected PTSD.
As the preponderance of the evidence is against the claim,
the benefit of the doubt doctrine is not applicable and the
claim for service connection for PTSD must be denied. See 38
U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364,
1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt
rule is inapplicable when the preponderance of the evidence
is found to be against the claimant"); Gilbert v. Derwinski,
1 Vet. App. 49, 56 (1990).
ORDER
Service connection for bilateral hearing loss is denied.
Service connection for tinnitus is denied.
Service connection for PTSD is denied.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs